Copyright basics

A copyright is a federally granted property right that protects rights holders from certain unauthorized uses of their original works of authorship. The subject matter eligible for protection is set forth in the Copyright Act of 1976. Copyrightable works include literary, dramatic, musical, and artistic works such as books, plays, music, lyrics, paintings, sculptures, video games, movies, sound recordings, and software.

To be eligible for protection under the Copyright Act, a work must be fixed in a “tangible medium of expression.” A literary work, for example, can be fixed in a book or on the back of an envelope. A musical work can be fixed in sheet music, on tape, or in a digital file. A work of visual art can be fixed on a canvas, and a sculptural work in stone.

Copyright protection does not extend to ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. Copyright protects only the expression of an idea, not the idea itself. This principle, sometimes called the “idea-expression dichotomy,” ensures that protection will extend only to the original elements that the author has contributed to a work, not to the work’s underlying ideas, which remain freely available to the public.

Under the Copyright Act, a copyright owner has the exclusive right to reproduce, adapt, distribute, publicly perform, and publicly display the work (or to authorize others to do so). In the case of sound recordings, the copyright owner has the right to perform the work publicly by means of a digital audio transmission. These exclusive rights are freely transferable, and may be licensed, sold, donated to charity, or bequeathed to heirs.

Limitations and exceptions

The exclusive rights of copyright are limited in a number of important ways. It has long been recognized that properly crafted limitations on the exclusive rights of copyright owners help to fulfill copyright’s basic goal by allowing the use of copyrighted works for certain publicly beneficial purposes.

International copyright agreements to which the United States is a party set forth a number of specific exceptions and limitations that member states may recognize. Any additional exceptions or limitations must satisfy the so-called “three-step” test, which provides that a permitted use must (1) be limited to “certain special cases,” (2) “not conflict with a normal exploitation of the work,” and (3) “not unreasonably prejudice the legitimate interests of the author.”

U.S. copyright law contains numerous exceptions and limitations to the exclusive rights of copyright owners, including in the following areas:

• Library and archival copying
• Educational and nonprofit broadcasting for purposes of distance learning
• Nonprofit live performances and displays
• Reproductions for visually impaired persons
• Making copies of computer programs for archival and/or maintenance purposes

In addition, section 107 of the Copyright Act codifies the doctrine of fair use, which permits certain other uses that are not covered by a specific statutory exception. While the doctrine is flexible and case-specific, section 107 sets forth an illustrative list of the types of uses that generally are considered appropriate for a finding of fair use. These include uses for purposes of criticism, comment, news reporting, teaching, scholarship and research. In determining whether a particular use is a fair use, section 107 specifies four factors that courts must consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

While many people believe that you must register your work with the U.S. Copyright Office before you can claim a copyright, no registration or other action in the Copyright Office is required to secure a copyright. A copyright is secured automatically when the work is created, as long as the work contains a sufficient degree of originality, and a work comes into being when it is fixed in a “copy or a phonorecord for the first time.” This is consistent with the Berne Convention, which states that the “enjoyment and exercise” of copyright “shall not be subject to any formality.”

Although registration with the Copyright Office is not required to secure protection, it does provide a number of benefits:

• Registration establishes a public record of the copyright claim.
• Registration is necessary before an infringement suit may be filed in court (for works of U.S. origin).
• If made before or within 5 years of publication, registration establishes prima facie evidence in court of the validity of the copyright and of the facts stated in the registration certificate.
• If registration is made within 3 months after first publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
• Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.

To register a claim to copyright with the U.S. Copyright Office, the claimant must: (1) submit a properly completed application; (2) pay a nonrefundable fee; and (3) deposit the required number of copies of the works to be registered.

The international minimum standard for the protection of copyright, as set forth in the Berne Convention and the TRIPS Agreement, is the life of the author plus another 50 years. Berne Union members are free to exceed the minimum standard. The United States, the European Union, and a number of other countries have elected to do so.

Under current U.S. law, for works created by individual authors on or after January 1, 1978, copyright protection begins with the creation of the work and lasts for the life of the author plus 70 years.

For anonymous works or pseudonymous works (if the name of the author is not revealed), and for works made for hire, copyright lasts for 95 years from the date of first publication, or 120 years from the date of creation, whichever expires first. The copyright in joint works lasts for the life of the last surviving author plus 70 years.

There is no such thing as an “international copyright” that will automatically protect an author’s works in countries around the world. Instead, copyright protection is territorial in nature, which means that copyright protection depends on the national laws where protection is sought. However, most countries are members of the Berne Convention and the TRIPS Agreement, which provide important protections for foreign authors.

Under these agreements, a member country generally must afford the nationals of other member states no less favorable copyright protection than it provides its own nationals. This bedrock principle of international copyright law is called “national treatment.”